STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent May 30, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-0341 (Berkeley County 12-F-168) OF WEST VIRGINIA 

Ruben C.,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Ruben C.,1 by counsel Christopher J. Prezioso, appeals the April 5, 2013, 

Amended Sentencing Order entered following his conviction by a jury in the Circuit Court of 

Berkeley County of first degree sexual assault,2 domestic battery,3 and violation of a domestic 

violence protective order.4 The State of West Virginia, by counsel Cheryl K. Saville, filed a 

response, to which petitioner filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Petitioner and the victim, M.C., had been married for seventeen years. They had two 

children, C.C., age 16, and M.C., age 12. On or about December 14, 2011, the victim obtained an 

emergency domestic violence protective order against petitioner following an incident that 

occurred on December 7, 2011.The victim testified that, on that day, she was riding with 

petitioner in a car when she told him she wanted a divorce. She testified that petitioner became 

very upset, drove her to an unknown location, hit her in the chest three times, and destroyed her 

1

In keeping with the Court’s policy of protecting minors and the identities of victims of 

sexual crimes, the victim and her children will be referred to by their initials throughout this 

memorandum decision, and petitioner, by his first name and last initial. 

2

See W.Va. Code § 61-8B-3 (2006) 

3

See W.Va. Code § 61-2-28(a) (2011). 

4

See W.Va. Code 48-27-903 (2011). 

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glasses.5 Petitioner moved out of the home after this incident but returned several times. Each 

time, either the victim or the children told him to leave. On one of the occasions when petitioner 

came to the home, C.C. told him he was not permitted to be there and showed him a copy of the 

protective order, at which time petitioner read through the document. 

On the afternoon of January 30, 2012, petitioner was waiting for the victim when she 

returned home. When she entered the home, petitioner took the bags of food she was carrying 

and threw them on the floor. Petitioner proceeded to hit her in the face and pushed her onto a 

sofa while telling her that he was tired of her and that she was humiliating him. He then forced 

her into the bedroom and onto the bed where he drew a knife and cord and told her numerous 

times that if she did not reconcile with him, he would kill her. Ultimately, the victim promised 

petitioner that they would reconcile. Petitioner then forcibly removed the victim’s clothes and 

had vaginal intercourse with her while the knife and cord were on the bedside table. When he 

was finished, he told her to get cleaned up because the children would soon be home from 

school. The victim testified that she let her hair down so that the children could not see that she 

had been beaten up and that she had been crying. Petitioner followed her into the kitchen and 

asked her to have the restraining order removed. The victim did not respond to his request. 

The children returned from school at approximately 3:00 pm. When C.C. arrived, he was 

surprised to see petitioner at the home because he had previously moved out. C.C. also noticed 

that the victim had been crying and asked petitioner what he did to her; petitioner replied that 

they had only been talking. Both the victim and C.C. testified that while petitioner was watching 

television with M.C. in the living room, the victim slipped into C.C.’s bedroom and asked him to 

quietly call the police. The police arrived at the home approximately ten minutes later and 

arrested petitioner. The victim gave a statement to police, which was both translated into English 

and written on her behalf by C.C. The victim found the knife and cord previously hidden by 

petitioner and gave them to police. The family’s landlord testified that he had given the knife to 

petitioner and that petitioner had used it to butcher animals outside the family’s home. 

Following a jury trial, petitioner was convicted of one count each of sexual assault in the 

first degree, domestic battery, and violation of a domestic violence protective order. His posttrial renewed motion for judgment of acquittal and motion for a new trial were denied. By order 

entered February 20, 2013, petitioner was sentenced to not less than fifteen nor more than thirtyfive years of incarceration for the first degree sexual assault conviction; twelve months and a 

$250.00 fine for the domestic battery conviction; and time served from the end of the sentence 

for his domestic battery conviction to February 20, 2013, plus a $500.00 fine, for the violation of 

a domestic violence protective order conviction. An Amended Sentencing Order was entered 

April 5, 2013. This appeal followed. 

In his first assignment of error, petitioner argues that the trial court committed error in 

denying his motions for judgment of acquittal based upon insufficiency of the evidence. In 

syllabus points one and three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), this 

Court established the following standards for reviewing claims of insufficiency of the evidence: 

5

The victim’s first language is Spanish. She testified through a translator. 

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1. The function of an appellate court when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, is sufficient to convince a 

reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the 

relevant inquiry is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential 

elements of the crime proved beyond a reasonable doubt. 

. . . . 

3. A criminal defendant challenging the sufficiency of the evidence to support a 

conviction takes on a heavy burden. An appellate court must review all the 

evidence, whether direct or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution. The evidence need not be 

inconsistent with every conclusion save that of guilt so long as the jury can find 

guilt beyond a reasonable doubt. Credibility determinations are for a jury and not 

an appellate court. Finally, a jury verdict should be set aside only when the record 

contains no evidence, regardless of how it is weighed, from which the jury could 

find guilt beyond a reasonable doubt. To the extent that our prior cases are 

inconsistent, they are expressly overruled. 

Furthermore, we observed that “[a]n appellate court may not decide the credibility of 

witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. . . . It is 

for the jury to decide which witnesses to believe or disbelieve.” Id. at 669 n.9, 461 S.E.2d at 175 

n.9. See State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996) (stating that when 

reviewing sufficiency of evidence, “the viewer must accept all reasonable inferences from it that 

are consistent with the verdict. . . .[and] as among competing inferences of which two or more 

are plausible, the judge must choose the inference that best fits the prosecution’s theory of 

guilt.”). 

With regard to his convictions of first degree sexual assault and domestic battery, 

petitioner argues that there was no scientific or physical evidence6 corroborating the victim’s 

account; that the only evidence that these alleged crimes occurred was the false testimony of the 

victim; and that law enforcement failed to adequately investigate the matter. Petitioner further 

argues that the sequence of events about which the victim testified could not have feasibly 

transpired during the thirty-minute time frame she described; that the recording of C.C.’s 9-1-1 

6

Petitioner contends that the photographic evidence of the victim’s injuries to her upper 

torso failed to show any injury and did not establish domestic violence. He argues that, at best, 

the photographs show that the injuries were self-inflicted. We note that both C.C. and one of the 

investigating officers testified that they observed bruising and red marks on the victim’s face and 

neck after the incident and that the officer also testified that he observed that the inside of the 

victim’s lip was bloodied. The officer’s photographs of these injuries were shown to the jury. 

Petitioner does not address the fact that evidence of injuries to the victim’s face and neck was 

considered by the jury. 

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call to police clearly demonstrated that neither the victim nor her children were in any immediate 

danger; that petitioner was cooperative with police when they arrived; and that the victim wrote 

letters to petitioner while he was in jail in which she wished him well, discussed making 

arrangements for the children to see him, and discussed issues relating to their property. It is 

petitioner’s contention that, given the foregoing, the evidence was not sufficient to convict him 

of first degree sexual assault and domestic battery. We disagree. 

Upon viewing all of the evidence in the light most favorable to the prosecution, and also 

crediting all inferences and credibility assessments that the jury might have drawn in favor of the 

prosecution, as we are required to do, we conclude that a rational trier of fact could have found 

that petitioner committed first degree sexual assault and domestic battery beyond a reasonable 

doubt. See Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, syl. pt. 3. The jury clearly found the 

testimony of the State’s witnesses to be credible. The victim’s testimony established that 

petitioner was waiting for her when she arrived home from shopping, that he shoved and struck 

her several times, forced her into the bedroom and down onto the bed, brandished a knife and 

cord, threatened to kill her, and told her that if they did not reconcile, she would die. Petitioner 

then forcibly removed the victim’s clothing and sexually assaulted her. The couple’s son testified 

that when he returned home from school, he observed that his mother had been crying and 

further observed bruising and red marks on her face and neck. The investigating officer similarly 

testified that the inside of the victim’s lip was bloodied. Photographs of the victim’s injuries 

were displayed to the jury. Given the foregoing, we conclude that the evidence was sufficient to 

convict petitioner of first degree sexual assault and domestic battery. 

With regard to his conviction of violation of a domestic violence protective order, 

petitioner similarly argues that the evidence was insufficient to convict him of this offense. West 

Virginia Code § 48-27-903(a)(1) provides that a person is guilty of the misdemeanor offense of 

violation of a protective order if he or she “knowingly and willfully violates[,]” inter alia, certain 

enumerated provisions of “an emergency or final protective order. . . .”7 An emergency domestic 

violence protective order had been filed against petitioner on December 14, 2011. A final hearing 

7

West Virginia Code § 48-27-903(a) provides as follows: 

(a) A person is guilty of a misdemeanor if the person knowingly and willfully 

violates: 

(1) A provision of an emergency or final protective order entered pursuant to: 

(A) Subsection (a) or (b) of section five hundred two [§ 48-27-502] of this article; 

(B) If the court has ordered such relief; subsection (2), (7), (9), or (14) of section 

five hundred three [§ 48-27-503] of this article; 

(C) Subsection (b) or (c) of section five hundred nine [§ 48-5-509], article five of 

this chapter; or (D) subsection (b) or (c) of section six hundred eight [§ 48-5-608], 

article five of this chapter; 

(2) A condition of bail, probation or parole which has the express intent or effect of 

protecting the personal safety of a particular person or persons; or 

(3) A restraining order entered pursuant to section nine-a [§ 61-2-9a], article two, 

chapter sixty-one of this code. 

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on the matter was scheduled for December 20, 2011. Because the petitioner was not personally 

served prior to December 20th, the hearing was continued to January 9, 2012. Personal service of 

the protective order was attempted but never achieved prior to the January 9th hearing. As a 

result, petitioner was served by means of a Class I legal advertisement published on January 2, 

2012, in the Martinsburg Journal newspaper, which is circulated throughout Berkeley County, 

pursuant to West Virginia Code § 48-27-311 (2001).8 Petitioner failed to appear at the January 9, 

2012 final hearing, at which time a final protective order was issued. Petitioner maintains that he 

visited the family home at least three times after the protective order was entered and that the 

victim never contacted the police to report a violation until the January 30, 2012, incident at 

issue. Petitioner argues that the evidence does not show that he “knowingly and willfully” 

violated the domestic violence protective order entered at the January 9, 2012 hearing given that 

he was not personally served with either the petition or the emergency order and, therefore, did 

not attend the final hearing. 

Based upon our review of the record before us, we conclude that the evidence was more 

than sufficient to convict petitioner of knowingly and willfully violating the domestic violence 

protective order. It is undisputed that service was properly obtained by publication of a Class I 

legal advertisement in the local newspaper. Furthermore, the couple’s son, C.C., testified that, 

after the protective order was in place but prior to the incident at issue, petitioner came to the 

home, C.C. told him to leave because a protective order was in place. C.C. further testified that 

he showed petitioner the protective order and that petitioner read through it. Moreover, the 

victim testified that after petitioner assaulted her, he begged her to have the protective order 

removed so that he could return home. Having viewed this evidence in the light most favorable 

to the prosecution, and having credited all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution, we conclude that a rational trier of fact could have 

found that petitioner knowingly and willfully violated the domestic violence protective order. 

See Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, syl. pt. 3.9 

Petitioner’s next assignment of error is that the circuit court committed error by failing to 

grant petitioner’s motion for new trial. Our standard of reviewing the circuit court’s order is as 

follows: 

“In reviewing challenges to findings and rulings made by a circuit court, 

we apply a two-pronged deferential standard of review. We review the rulings of 

the circuit court concerning a new trial and its conclusion as to the existence of 

reversible error under an abuse of discretion standard, and we review the circuit 

8

According to the parties, personal service was achieved on April 20, 2012. 

9

In a separate assignment of error, petitioner very briefly argues that his convictions 

should be reversed because the victim’s false and uncorroborated testimony had a material effect 

on the jury verdict given that there was no physical, scientific or other testimonial evidence of 

the crimes. As discussed above, the jury clearly weighed the evidence and determined that the 

victim’s testimony was credible. Furthermore, notwithstanding his allegations that the victim 

committed welfare fraud, petitioner has failed to show that the victim’s testimony relating to the 

crimes herein was false. 

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court's underlying factual findings under a clearly erroneous standard. Questions 

of law are subject to a de novo review.” Syllabus point 3, State v. Vance, 207 

W.Va. 640, 535 S.E.2d 484 (2000). 

Syl. Pt. 2, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). 

Petitioner argues that the circuit court should have permitted extrinsic evidence that the 

victim fraudulently used the identity of “Patricia Ortega” to defraud her employer and the State. 

More specifically, petitioner sought to introduce employment records to show that the victim 

used a false identity to obtain work with her employer while also receiving the maximum amount 

of welfare benefits for being unemployed. Petitioner argues that the purpose of introducing this 

evidence was not only to attack the victim’s credibility, but also to show her motive in making 

false allegations against him—that by sending petitioner to prison, the victim would be able to 

further hide her acts of fraud. 

The circuit court disallowed the documentary evidence, but permitted cross examination 

of the victim on the issue, pursuant to Rule 608(b) of the West Virginia Rules of Evidence, 

which provides: 

(b) Specific Instances of Conduct. Specific instances of the conduct of a 

witness, for the purpose of attacking or supporting the witness’ credibility, 

other than conviction of crime as provided in Rule 609, may not be proved 

by extrinsic evidence. They may, however, in the discretion of the court, if 

probative of truthfulness or untruthfulness, be inquired into on crossexamination of a witness other than the accused (1) concerning the 

witness’ character for truthfulness or untruthfulness, or (2) concerning the 

character for truthfulness or untruthfulness of another witness as to which 

character the witness being cross-examined has testified. 

The giving of testimony under this rule by a witness does not operate as a 

waiver of the witness’ privilege against self-incrimination when examined 

with respect to matters which relate only to credibility. 

When asked about the allegations of fraud, the victim repeatedly invoked her right to 

remain silent under the Fifth Amendment to the United States Constitution. Petitioner argues that 

he was unfairly precluded from showing the jury that the victim had used a false identity to 

obtain employment and was defrauding the State of welfare benefits. He further argues that, 

given that his entire case rested on the victim’s truthfulness and untruthfulness, the fact that the 

victim testified through an interpreter made it difficult for the jury to determine her propensity 

for untruthfulness. He thus contends that he should have been permitted to present extrinsic 

evidence of the victim’s fraudulent conduct. We disagree. 

It is undisputed that the victim has not been charged with or convicted of welfare fraud. 

Pursuant to Rule 608(b), specific instances of any such alleged fraud on the part of the victim, 

for the purpose of attacking her credibility, may not be proved by extrinsic evidence. The rule 

permits, however, cross examination of the victim concerning her character for truthfulness or 

untruthfulness. Accordingly, the circuit court properly permitted defense counsel to cross 

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examine her on the fraud allegations. Petitioner’s contention that he should have been allowed to 

introduce extrinsic evidence of such fraud given the victim’s assertion of her Fifth Amendment 

right to remain silent in response to this line of questioning is not supported by the plain 

language of the rule, nor does petitioner offer support from any other legal authority. Similarly, 

petitioner’s argument that he sought to introduce extrinsic evidence of alleged fraud to also show 

that the victim fabricated the sexual assault charges in order to silence the petitioner from 

revealing her fraudulent conduct is not supported by case law or any logical argument. The 

circuit court’s reasoned decision to allow cross examination of the victim and preclude extrinsic 

evidence was soundly based on Rule 608.10 

Petitioner further argues that his motion for a new trial should have been granted on the 

ground that the circuit court should have given a jury instruction providing that an adverse 

inference could be drawn from the victim’s assertion of her Fifth Amendment right to remain 

silent. In support of his argument, petitioner contends that, in civil actions, the pleading of the 

Fifth Amendment by a party would cause an adverse inference when the party “refuse[s] to 

testify in response to probative evidence offered against them.” In re Aaron Thomas M., 212 

W.Va. 604, 611, 575 S.E.2d 214, 221 (2002) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 

(1976)). Petitioner argues that, similarly, an adverse inference should have been permitted in his 

criminal trial. Given that there is no precedent for such an instruction in the criminal context, we 

conclude that the circuit court did not abuse its discretion by permitting the jury to draw its own 

conclusions regarding the victim’s credibility and by refusing to give an adverse inference jury 

instruction as it related to her testimony. 

Petitioner’s final argument is that his conviction should be reversed because the circuit 

court permitted certain Rule 404(b) evidence of prior bad acts to be admitted at trial without 

conducting an in camera hearing pursuant to State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 

10Petitioner also argues that, prior to trial, he should have been permitted to review 

subpoenaed welfare benefit records for the victim and “Patricia Ortega” from the West Virginia 

Department of Health and Human Resources (“DHHR”). The records were ordered placed under 

seal and, upon reviewing them in camera, the circuit court concluded that the petitioner could not 

use them under Rule 608(b) because, as previously noted, that rule “prohibits the use of extrinsic 

evidence to prove a specific instance of conduct that could attack a witness’s credibility.” 

Petitioner argues that, at the very least, he should have been permitted to review the subpoenaed 

records, which would have given him information to more thoroughly prepare for crossexamination of the victim and which may have provided him with information that would have 

been useful to his case. Petitioner’s argument is without merit. The record reveals that petitioner 

made full inquiry of the victim regarding her receipt of welfare benefits and her alleged use of 

the alias “Patricia Ortega” for purposes of employment. The victim repeatedly asserted her Fifth 

Amendment privilege against self-incrimination in response thereto. There is no basis in the 

record to believe that access to the DHHR records adversely affected petitioner’s crossexamination of the victim given the court’s evidentiary rulings and the victim’s predictable 

response to this line of questioning. Further, and more importantly, there is certainly no evidence 

that the subpoenaed records were in any way relevant to the crimes for which petitioner was tried 

and convicted. The circuit court did not abuse its discretion in refusing to allow the petitioner to 

review the DHHR records. 

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(1994).11 Our review of the circuit court’s ruling in this regard is governed by the following 

standard: 

“The action of a trial court in admitting or excluding evidence in the 

exercise of its discretion will not be disturbed by the appellate court unless it 

appears that such action amounts to an abuse of discretion.” Syllabus Pt. 10, State 

v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by 

State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994). 

Syl. Pt. 1, State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010). See Id. at 604, 694 S.E.2d at 

937, syl. pt. 2 (“‘A trial court’s evidentiary rulings, as well as its application of the Rules of 

Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v. 

Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).”). 

Petitioner argues that, prior to trial, the State informed petitioner that it intended to 

present evidence of the December 7, 2011, domestic battery, which was the underlying act for 

the domestic violence protective order. Petitioner argued, as he does on appeal, that the circuit 

court should have conducted a McGinnis hearing to determine whether the evidence should have 

been admitted. However, the circuit court determined that the evidence was intrinsic and 

necessary to complete the story of the crimes for which petitioner was being tried. See LaRock, 

196 W.Va. at 312 n.29, 470 S.E.2d at 631 n.29 (““‘Other act” evidence is “intrinsic” when the 

evidence of the other act and the evidence of the crime charged are “inextricably intertwined” or 

11In McGinnis, we held has follows: 

Where an offer of evidence is made under Rule 404(b) of the West 

Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West 

Virginia Rules of Evidence, is to determine its admissibility. Before admitting the 

evidence, the trial court should conduct an in camera hearing as stated in State v. 

Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and 

arguments of counsel, the trial court must be satisfied by a preponderance of the 

evidence that the acts or conduct occurred and that the defendant committed the 

acts. If the trial court does not find by a preponderance of the evidence that the 

acts or conduct was committed or that the defendant was the actor, the evidence 

should be excluded under Rule 404(b). If a sufficient showing has been made, the 

trial court must then determine the relevancy of the evidence under Rules 401 and 

402 of the West Virginia Rules of Evidence and conduct the balancing required 

under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then 

satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on 

the limited purpose for which such evidence has been admitted. A limiting 

instruction should be given at the time the evidence is offered, and we recommend 

that it be repeated in the trial court's general charge to the jury at the conclusion of 

the evidence. 

193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 2. 

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both acts are part of a “single criminal episode” or the other acts were “necessary preliminaries” 

to the crime charged.’”) (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990) 

(internal citations omitted)). Thus, as this Court has held in past cases, evidence that is intrinsic 

to the indicted charge is not governed by Rule 404(b). See State v. Harris, 230 W.Va. 717, 722, 

742 S.E.2d 133, 138 (2013) (citing cases). 

Clearly, evidence of the domestic battery occurring on December 7, 2011, which was the 

underlying act for which the victim sought and was awarded a domestic violence protective 

order, was inextricably intertwined with the crime for which petitioner was charged (violation of 

the protective order). Without the evidence of the underlying domestic battery, it would not have 

been possible to appropriately present to the jury the complete story of the crime charged. We, 

therefore, conclude that the circuit court did not abuse its discretion in admitting this evidence at 

trial. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: May 30, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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